Post details: E.D.Ky.: The entirety of the stop clearly showed it was a seizure and defendant was not free to leave

10/19/13

Permalink 12:03:14 am, by fourth, 368 words, 496 views   English (US)
Categories: General

E.D.Ky.: The entirety of the stop clearly showed it was a seizure and defendant was not free to leave

Encountered by the police and ordered out of the car at night, this unquestionably became a seizure of the person. It was clearly communicated that he was not free to leave. United States v. Mundy, 2013 U.S. Dist. LEXIS 148952 (E.D. Ky. October 3, 2013):

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Here, even the officers declared their manner of parking and approaching as communicative. The cruiser parked to permit the fastest and most obvious possible approach by Lain; the officers activated the lights to tell the target car and passers-by that police were on the scene. They may have intended this to have only a safety effect but, again, the perspective that matters is that of the reasonable person seeing the events. A car occupant here would know that police abruptly stopped and placed the cruiser in the car's direct path. The angled parking unequivocally told the target car that it was the focus of the cruiser's scrutiny. The lights signify notice of police presence and emergency activity. Those lights require drivers in Kentucky to yield the right of way. See KRS § 189.930(1) (requiring that "every other vehicle shall yield the right-of-way" and "stop and remain in ... position" in response to an approaching emergency vehicle operating its "blue lights"); id. at (2) (requiring vehicle to "stop" and "keep such position" in response to approach of emergency vehicle, including a police car, with lights operating). To leave in the face of this police presence would have been unreasonable and possibly chargeable. See KRS § 520.100 (fleeing and evading, with element "disobey[ing] a recognized direction to stop ... vehicle, given by a person recognized to be a peace officer"). Rice intuitively knew and so perceived the situation. She subjectively felt that she could not leave. DE #26 (Tr.) at 95 ("[I]f we had left, they would have ... tried to take us to the jail or took us to the jail."). This perception was quite reasonable. The stop geometry, the blue lights, the aggressive exit by Lain, and the approach with flashlights all demonstrate that a reasonable car occupant would not have felt free to depart. The most brazen and rights-assertive citizen might have steered around the cruiser, but a reasonable person would not have felt free to depart. This was undoubtedly a seizure.

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